AB426: Bill Text

AB426,167,17 5. If the substance involved is naturally occurring, unless the substance involved is carcinogenic, teratogenic, or mutagenic in humans, the department considers the existence of the background concentration of the substance in evaluating response options to the noncompliance with the enforcement standard or alternative concentration limit for that substance and determines that the proposed prohibition will result in the protection of or substantial improvement in groundwater quality notwithstanding the background concentrations of the substance.

AB426,167,23 (b) The department may only require a remedial action to be taken if the remedial action is reasonably related in time and scope to the substance, activity, or practice that caused the enforcement standard or alternative concentration limit to an enforcement standard to be attained or exceeded and the quality of groundwater to be statistically significantly different from either baseline water quality or background water quality at the point of standards application.

AB426,168,10 (c) If nitrates or any substance of welfare concern attains or exceeds an enforcement standard and if the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline or background water quality, then the department shall evaluate whether the enforcement standard was attained or exceeded in whole or in part due to high background water quality concentrations of the substance and whether the additional concentrations represent a public welfare concern before it designates the appropriate response and, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and par. (a) 1. to 4. apply.

AB426,168,12 (d) If compliance with an enforcement standard is achieved at a point of standards application, then sub. (5) applies.

AB426,168,14 (7) Environmental analysis not required. An action under sub. (5) or (6) with respect to a specific site does not constitute a major state action under s. 1.11 (2).

AB426,168,18 (8) Exemptions to groundwater quality standards. When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may grant an exemption from a groundwater quality standard and establish an alternative concentration limit to a groundwater quality standard.

AB426,168,21 (9) Applicability of other law. Chapter NR 140, Wis Adm. Code, applies to mining operations and mining sites, including mining waste sites, only to the extent that it does not conflict with this section.

AB426,169,2 295.65 Successors. (1) When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease, or otherwise, the department shall release the first operator from the duties imposed upon the first operator by this subchapter as to the mining operation and transfer the mining permit and any approvals under ss. 295.60, 295.605, and 295.61 to the successor operator if all of the following apply:

AB426,169,4 (a) The successor operator agrees to comply with the requirements of this subchapter.

AB426,169,8 (b) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any mining laws within the previous 10 years, posts any bond or other security required under s. 295.59, and assumes all responsibilities of all applicable approvals granted to the predecessor operator.

AB426,169,10 (2) The department is not required to prepare an environmental impact statement or an environmental assessment for the purposes of this section.

AB426,169,25 295.66 Cessation of mining or reclamation. If there is a cessation of mining or reclamation for 30 days or more that is not set forth in either the mining plan or the reclamation plan, the operator shall notify the department of the cessation within 48 hours of the cessation of mining and shall begin stabilization of the mining site. The department may require the operator to provide technical, engineering, and any other information that the operator believes shows that its actions to stabilize the mining site are adequate. If the department determines, after reviewing the information provided by the operator, that the proposed stabilization of the mining site will result in a substantial adverse impact to the environment, the department shall order the operator to begin additional measures to protect the environment, including, if the cessation is reasonably anticipated to extend for a protracted period of time, reclamation according to the reclamation plan or part of the reclamation plan. Usual and regular shutdown of operations on weekends, for maintenance or repair of equipment or facilities, or for other customary reasons do not constitute a cessation of mining.

AB426,170,4 295.67 Determination of abandonment of mining. (1) Except as provided in sub. (2), abandonment of mining occurs if there is a cessation of mining, not set forth in an operator's mining plan or reclamation plan or by any other sufficient written or constructive notice, extending for more than 6 consecutive months.

AB426,170,5 (2) Abandonment of mining does not occur if all of the following apply:

AB426,170,7 (a) The cessation of mining is due either to labor strikes or to unforeseen developments such as adverse market conditions.

AB426,170,9 (b) The cessation of mining does not continue beyond the time, not to exceed 5 years, specified by the department.

AB426,170,11 (c) The mining site is maintained in an environmentally stable manner during the cessation of mining.

AB426,170,13 (d) The reclamation of the mining site continues according to the reclamation plan during the cessation of mining to the extent practicable.

AB426,170,23 295.68 Certificates of completion and release of security. (1) Upon the petition of the operator, but not less than 4 years after notification to the department by the operator of the completion of the reclamation plan or not less than one year after notification to the department by the operator of the completion of the reclamation plan as to a portion of the mining site, if the department finds that the operator has completed reclamation of any portion of the mining site in accordance with the reclamation plan and this subchapter, the department shall issue a certificate of completion setting forth a description of the area reclaimed and a statement that the operator has fulfilled its duties under the reclamation plan as to that area.

AB426,171,4 (2) Upon the issuance of any certificate of completion under sub. (1) for any portion of the mining site, but not for the entire mining site, the department shall allow the operator to reduce the amount of the bond or other security provided under s. 295.59 (1) to an amount equal to the estimated cost of reclamation of the portion of the mining site that is disturbed or for which reclamation has been completed but no certificate of completion has been issued.

AB426,171,10 (3) Upon issuance of a certificate or certificates of completion of reclamation for the entire mining site, the department shall require the operator to maintain a bond or other security under s. 295.59 (1) equal to at least 10 percent of the cost to the state of reclamation of the entire mining site, except that if the mining site in the mining plan is less than 10 acres, the department may release the bond or other security after issuance of the certificate of completion for the entire mining site.

AB426,171,14 (4) After 10 years after the issuance of a certificate or certificates of completion for the entire mining site, the department shall release the remaining bond or other security provided under s. 295.59 (1) if the department finds that the reclamation plan has been complied with.

AB426,172,4 295.69 Termination of proof of financial responsibility for long-term care of mining waste site. (1) One year after closure, and annually thereafter until the department terminates the obligation to maintain proof of financial responsibility for long-term care of a mining waste site under sub. (2) (c), an operator who has carried out all necessary long-term care during the preceding year, may apply to the department for a reduction in the amount of the proof of financial responsibility provided under s. 295.59 (2m) equal to the costs of long-term care for that year. The operator shall provide an itemized list of costs incurred. If the department determines that the costs incurred are in accordance with the long-term care requirements in the approved waste site feasibility study and plan of operation and that adequate funds exist to complete required long-term care for the remainder of the 40-year period on which the amount of the proof of financial responsibility was originally determined, the department shall authorize in writing a reduction in the amount of proof of financial responsibility provided. The department shall make its determinations within 90 days of an application.

AB426,172,14 (2) (a) An operator may apply to the department for termination of its obligation to maintain proof of financial responsibility for long-term care of the mining waste site under s. 295.59 (2m) at any time after the mining waste site has been closed for 20 years by submitting an application that demonstrates that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment. The burden is on the operator to prove by a preponderance of the evidence that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment.

AB426,172,23 (b) Within 30 days of receiving an application under par. (a), the department shall provide notice to the public of the application for termination of the obligation to maintain proof of financial responsibility for long-term care. In the notice, the department shall invite the submission of written comments by any person on the application within 30 days of the day on which the notice is published. The department shall provide the notice by publishing a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the mining waste site. The department shall also send the notice to the operator.

AB426,173,6 (c) Within 120 days of the day on which the department publishes the notice under par. (b), the department shall determine either that proof of financial responsibility for long-term care of the mining waste site is no longer required, in which case the applicant is relieved of the responsibility of providing proof of financial responsibility for long-term care, or that proof of financial responsibility for long-term care of the mining waste site is still required, in which case the applicant may not submit another application under par. (a) until at least 5 years have elapsed since the previous application.

AB426,173,16 295.695 Inspections by the department. (1) Any duly authorized officer, employee, or representative of the department who has received the safety training under 30 CFR 48.31 may enter and inspect any property, premises, or place on or at which any mining operation or facility is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this subchapter and the provisions of chs. 281, 283, 285, 289, 291, 292, and 299 and rules promulgated under those chapters that are applicable to the mining operation. No person may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials.

AB426,173,18 (2) No person may obstruct, hamper, or interfere with any inspection authorized in sub. (1).

AB426,173,21 (3) The department shall furnish to the operator a written report on any inspection setting forth all observations, relevant information, and data that relate to compliance status.

AB426,173,25 295.73 Fees. (1) An applicant for a mining permit is not required to pay any application or filing fee for any approval other than a mining permit, notwithstanding any fee required under ch. 23, 29, 30, 169, 281, 283, 285, 289, or 291, or rules promulgated under those chapters.

AB426,174,5 (3) (a) The department shall assess an applicant a fee equal to its costs for evaluating the mining project, including the costs for consultants retained by the department to evaluate the application for the mining permit and the application for any other approval and to perform environmental analysis under s. 1.11 or $1,100,000, whichever is less.

AB426,174,6 (b) The applicant shall pay fees as follows:

AB426,174,9 1. One hundred thousand dollars shall be paid at the time that the bulk sampling plan is filed under s. 295.45 or at the time that the notice of the intention to file a mining permit application is filed, whichever is first.

AB426,174,12 2. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 1. has been fully allocated against actual costs.

AB426,174,15 3. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 2. has been fully allocated against actual costs.

AB426,174,18 4. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 3. has been fully allocated against actual costs.

AB426,174,21 5. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 4. has been fully allocated against actual costs.

AB426,175,2 (b) After the department approves or denies the application for a mining permit or, if the applicant withdraws the application for a mining permit, after the applicant withdraws the application, the department shall refund to the applicant any amount paid by the applicant under par. (a) but not fully allocated against the department's actual costs.

AB426,175,5 (4) Subchapter VI of ch. 289 does not apply to mining waste disposed of in a mining waste site covered by a mining permit, except that an operator shall pay the fees specified in ss. 289.63 (4), 289.64 (3), and 289.67 (1) (d).

AB426,175,9 295.75 Effect of other laws. If there is a conflict between a provision in this subchapter and a provision in ch. 23, 29, 30, 160, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under one of those chapters, the provision in this subchapter controls.

AB426,175,12 295.77 Review. (1) Notwithstanding s. 227.42, no person is entitled to a contested case hearing on a decision by the department under this subchapter or on a decision by the department relating to the issuance of an approval.

AB426,175,17 (2) Judicial review of a decision described in sub. (1) is the exclusive method for challenging the decision. The court shall base review of a decision described in sub. (1) on the administrative record before the department. The scope of the review is that specified in s. 227.57. No judicial review is available before the department issues the final decision on an approval.

AB426,175,21 295.78 Mining and reclamation; orders. (1) (a) If the department finds a violation of law or any unapproved deviation from the mining plan, reclamation plan, or mining waste site feasibility study and plan of operation at a mining site under a mining permit, the department shall do one of the following:

AB426,175,24 1. Issue an order requiring the operator to comply with the law, mining plan, reclamation plan, or mining waste site feasibility study and plan of operation within a specified time.

AB426,176,2 2. Require the alleged violator to appear before the department for a hearing and answer the department's charges.

AB426,176,3 3. Request the department of justice to initiate action under s. 295.79.

AB426,176,7 (b) Any order issued under par. (a) 1. following a hearing takes effect immediately. Any other order takes effect 10 days after the date the order is served, unless the person named in the order requests in writing a hearing before the department within the 10-day period.

AB426,176,11 (c) If no hearing on an order issued under par. (a) 1. was held and if the department receives a request for a hearing within 10 days after the date the order is served, the department shall provide due notice and hold a hearing. If after the hearing the department finds that no violation has occurred, it shall rescind its order.

AB426,176,16 (d) If an operator fails to comply with an order issued under par. (a) 1. within the time for compliance specified in the order, the department shall suspend the mining permit until the operator fully complies with the order, except that if the operator seeks review of the order under s. 295.77, mining may continue until the final disposition of the action, except as provided under sub. (4).

AB426,176,19 (e) The department shall inform the department of justice of a suspension under par. (d) within 14 days. After receiving notice of a suspension, the department of justice may commence an action under s. 295.79.

AB426,177,4 (2) If reclamation of a mining site is not proceeding in accordance with the reclamation plan and the operator has not begun to rectify deficiencies within the time specified in an order, or if the reclamation is not properly completed in conformance with the reclamation plan within one year after completion or abandonment of mining on any portion of the mining site, unless because of acts of God, such as adverse weather affecting grading, planting, and growing conditions, the department, with the staff, equipment, and material under its control, or by contract with others, shall take the actions that are necessary for the reclamation of mined areas. The operator is liable for the cost to the state of reclamation conducted under this subsection.

AB426,177,10 (3) The department shall cancel all other mining permits held by an operator who refuses to reclaim a mining site in compliance with the reclamation plan after the completion of mining or after the cancellation of a mining permit. The department may not issue any mining permit for that mining site or any other mining site in this state to an operator who refused to reclaim the mining site in compliance with the reclamation plan.

AB426,177,16 (4) At any time that the department determines that the continuance of mining constitutes an immediate and substantial threat to public health and safety or the environment, the department may request the department of justice to institute an action in circuit court of the county in which the mine is located for a restraining order or injunction or other appropriate remedy to stop mining until the immediate and substantial threat is eliminated.

AB426,177,18 (5) Section 281.346 (7m) does not apply to a water withdrawal associated with a mining operation for which a mining permit has been issued.

AB426,177,22 295.79 Enforcement; penalties. (1) The department of justice shall enforce this subchapter and any order issued under this subchapter. The circuit court of the county where the violation occurred has jurisdiction to enforce this subchapter or any orders issued under this subchapter, by injunction or other appropriate relief.

AB426,178,2 (2) (a) Any person who authorizes or engages in mining without a mining permit and written authorization to mine under s. 295.59 (3) shall forfeit all profits obtained from those illegal activities and not more than $5,000 for each day during which the mine was in operation.

AB426,178,4 (b) A person to whom par. (a) applies is also liable to the department for the full cost of reclaiming the affected area of land and any damages caused by the mining.

AB426,178,8 (c) If the violator of par. (a) is a corporation, limited liability company, partnership, or association, any officer, director, member, manager, or partner who knowingly authorizes, supervises, or contracts for mining is also subject to the penalties in this subsection.

AB426,178,16 (3) Any person who makes or causes to be made in an application or report required by this subchapter a statement known to the person to be false or misleading in any material respect or who refuses to submit information required by a mining permit or by this subchapter may be fined not less than $1,000 nor more than $5,000. If the false or misleading statement is material to the issuance of the mining permit and the mining permit would not have been issued had the false or misleading statement not been made, the court may revoke the mining permit. If any violation under this subsection is repeated the court may revoke the mining permit.

AB426,178,22 (4) (a) Any person who commits a violation of this subchapter or any permit or order issued under this subchapter, except for the violations enumerated in subs. (2) or (3), shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense, except that no forfeiture may be imposed during the time that continued mining is authorized under s. 295.63 (3). While an order is suspended, stayed, or enjoined, this penalty does not accrue.

AB426,179,3 (b) In addition to the penalties provided under par. (a), the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this paragraph. These moneys shall be credited to the appropriation account under s. 20.455 (1) (gh).

AB426,179,5 (5) Any person having an interest that is or may be adversely affected may intervene as a matter of right, in any enforcement action brought under this section.

AB426, s. 66 Section 66. 299.85 (7) (a) 2. and 4. of the statutes are amended to read:

AB426,179,20 299.85 (7) (a) 2. Notwithstanding minimum or maximum forfeitures specified in ss. 29.314 (7), 29.334 (2), 29.604 (5) (a), 29.611 (11), 29.889 (10) (c) 2., 29.969, 29.971 (1) (a), (1m) (a), (3), (3m), (11g) (b), (11m) (b), and (11r) (b), 30.298 (1), (2), and (3), 30.49 (1) (a) and (c), 31.23 (2), 281.75 (19), 281.98 (1), 281.99 (2) (a) 1., 283.91 (2), 285.41 (7), 285.57 (5), 285.59 (8), 285.87 (1), 287.95 (1), (2) (b), and (3) (b), 287.97, 289.96 (2) and (3) (a), 291.97 (1), 292.99 (1) and (1m), 293.81, 293.87 (3) and (4) (a), 295.19 (3) (a) and (b) 1., 295.37 (2), 295.79 (2), (3), and (4), 299.15 (4), 299.51 (5), 299.53 (4) (c) 1., 299.62 (3) (a) and (c), and 299.97 (1), if a regulated entity that qualifies under sub. (2) for participation in the Environmental Compliance Audit Program corrects violations that it discloses in a report that meets the requirements of sub. (3) within 90 days after the department receives the report that meets the requirements of sub. (3), the regulated entity may not be required to forfeit more than $500 for each violation, regardless of the number of days during which the violation continues.

AB426,180,7 4. Notwithstanding minimum or maximum forfeitures specified in ss. 29.314 (7), 29.334 (2), 29.604 (5) (a), 29.611 (11), 29.889 (10) (c) 2., 29.969, 29.971 (1) (a), (1m) (a), (3), (3m), (11g) (b), (11m) (b), and (11r) (b), 30.298 (1), (2), and (3), 30.49 (1) (a) and (c), 31.23 (2), 281.75 (19), 281.98 (1), 281.99 (2) (a) 1., 283.91 (2), 285.41 (7), 285.57 (5), 285.59 (8), 285.87 (1), 287.95 (1), (2) (b), and (3) (b), 287.97, 289.96 (2) and (3) (a), 291.97 (1), 292.99 (1) and (1m), 293.81, 293.87 (3) and (4) (a), 295.19 (3) (a) and (b) 1., 295.37 (2), 295.79 (2), (3), and (4), 299.15 (4), 299.51 (5), 299.53 (4) (c) 1., 299.62 (3) (a) and (c), and 299.97 (1), if the department approves a compliance schedule under sub. (6) and the regulated entity corrects the violations according to the compliance schedule, the regulated entity may not be required to forfeit more than $500 for each violation, regardless of the number of days during which the violation continues.

AB426, s. 67 Section 67. 299.95 of the statutes is amended to read:

AB426,180,25 299.95 Enforcement; duty of department of justice; expenses. The attorney general shall enforce chs. 281 to 285 and 289 to 295 and this chapter, except ss. 285.57, 285.59, and 299.64, and all rules, special orders, licenses, plan approvals, permits, and water quality certifications of the department, except those promulgated or issued under ss. 285.57, 285.59, and 299.64 and except as provided in ss. 285.86 and 299.85 (7) (am). The Except as provided in s. 295.79 (1), the circuit court for Dane county or for any other county where a violation occurred in whole or in part has jurisdiction to enforce chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval, permit, or certification by injunctional and other relief appropriate for enforcement. For purposes of this proceeding where chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval, permit or certification prohibits in whole or in part any pollution, a violation is considered a public nuisance. The department of natural resources may enter into agreements with the department of justice to assist with the administration of chs. 281 to 285 and 289 to 295 and this chapter. Any funds paid to the department of justice under these agreements shall be credited to the appropriation account under s. 20.455 (1) (k).

AB426, s. 68 Section 68. 323.60 (1) (gm) of the statutes is created to read:

AB426,181,3 323.60 (1) (gm) "Minerals" mean unbeneficiated metallic ore but does not include mineral aggregates such as stone, sand, and gravel.

AB426, s. 69 Section 69. 323.60 (5) (d) 3. of the statutes is amended to read:

AB426,181,14 323.60 (5) (d) 3. All facilities with 10 or more employees in major group classifications 10 to 13 in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget, at which a toxic chemical is used at or above an applicable threshold quantity, except that compliance with the toxic chemical release form requirements under this subdivision is not required for the placement of a toxic chemical in a storage or disposal site or facility that is located at a facility with a permit under ch. 293 or a mining permit under subch. III of ch. 295 if the toxic chemical consists of or is contained in merchantable by-products, as defined in s. 293.01 (7) or 295.41 (25), minerals as defined in s. 293.01 (8), or refuse, as defined in s. 293.01 (25) or 295.41 (41).

AB426, s. 70 Section 70. 710.02 (2) (d) of the statutes is amended to read:

AB426,181,17 710.02 (2) (d) An exploration mining lease as defined in s. 107.001 (1) and land used for mining and associated activities under chs. 293 and 295.

AB426, s. 71 Section 71. Nonstatutory provisions.

AB426,181,19 (1) Rules.

AB426,182,4 (a) The department of natural resources shall submit in proposed form rules revising chapters NR 130, 131, 132, and 182, Wisconsin Administrative Code, that are in effect on the effective date of this paragraph and revising any other rules promulgated under section 293.13 (1) (a) of the statutes that are in effect on the effective date of this paragraph to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 5th month beginning after the effective date of this paragraph. The proposed revised rules shall clarify that chapters NR 130, 131, 132, and 182, Wisconsin Administrative Code, and any other rules promulgated under section 293.13 (1) (a) of the statutes do not apply to ferrous metallic mining.

AB426,182,15 (b) The department of natural resources shall submit in proposed form rules revising chapters NR 500 to 555 and 600 to 679, Wisconsin Administrative Code, that are in effect on the effective date of this paragraph and revising any other rules promulgated under sections 289.05 and 289.06 (1) of the statutes that are in effect on the effective date of this paragraph to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 5th month beginning after the effective date of this paragraph. The department shall revise the rules in chapters NR 500 to 555 and 600 to 679, Wisconsin Administrative Code, and any other rules promulgated under sections 289.05 and 289.06 (1) of the statutes so that they are consistent with subchapter III of chapter 295, of the statutes, as created by this act.

AB426,182,22 (c) The department of natural resources shall submit, to the legislative council staff under section 227.15 (1) of the statutes, no later than the first day of the 5th month beginning after the effective date of this paragraph, in proposed form rules revising any rules of the department that are in effect on the effective date of this paragraph, in addition to the rules under paragraphs (a ) and (b), that provide exemptions for nonferrous mining or associated activities to provide the same exemptions for ferrous mining and associated activities.

AB426,183,3 (d) Notwithstanding section 227.137 (2) of the statutes, the department of natural resources is not required to prepare an economic impact report for the revised rules required under paragraphs (a ) to (c).

AB426,183,4 (End)